Secrecy News

Subpoena for Office of Legal Counsel Documents Authorized

The Senate Judiciary Committee has authorized the issuance of a subpoena for a copy of opinions of the Justice Department Office of Legal Counsel (OLC).

OLC opinions interpret the law for executive branch agencies. Controversially, they have been used to sanction official departures from existing legal norms in domestic surveillance, prisoner interrogation, and other areas. They have also frequently been withheld from most members of Congress (though they have reportedly been provided to the intelligence committees in many cases).

“During this administration, OLC has been misused to provide legal justifications for misguided policies,” said Sen. Patrick Leahy, chairman of the Judiciary Committee. “That advice has been deeply flawed, sloppy, and flat out wrong but it has been permitted to happen because secrecy has prevented our oversight.”

“Unjustified secrecy continues to prevent the review by this Committee that would provide a check and some control on how the administration is interpreting the law that is Congress’s constitutional responsibility to write. That obsessive secrecy even prevents us from knowing the subject matter on which OLC has written opinions,” Sen. Leahy said.

The secrecy of OLC decisions, as well as interrogation policy, the role of signing statements and many other questions were explored in detailed questions submitted to Michael B. Mukasey following his confirmation hearing last October. The full record of that hearing (with the Attorney General’s answers in the PDF version) has now been published.

Secret OLC opinions, along with overclassification generally, and a litany of other problematic practices were explored by Sen. Russ Feingold in a hearing last week on “Restoring the Rule of Law.” Senator Feingold summarized the findings and recommendations of that hearing in a floor statement yesterday.